Public Bill Committee

[Sir Nicholas Winterton in the Chair]
CR 01 JUSTICE
CR 02 GeneWatch UK
CR 03 RAC Foundation

The Committee deliberated in private.

On resuming

Q 7272

Nicholas Winterton: I welcome our witnesses to this afternoons sitting. I welcome in particular Sir Hugh Orde, president of the Association of Police Officers and Gary Pugh, director of forensic services in the Metropolitan Police Service, on behalf of the Association of Chief Police Officers.
Sir Hugh, you and Gary Pugh will have studied the Bill. If in two minutes you could give us your introductory views, that would be helpful. I was going to ask you to introduce yourselves, but as there are just two of you and I have mentioned your names and everybody knows you and, I suspect, Mr. Pugh too, that would be a waste of time. Could you, Sir Hugh, give us your general run-down of the Bill?

Sir Hugh Orde: Thank you, Sir Nicholas. I bring apologies from my colleague Chris Sims, who is a real expert on DNA at the ACPO level. Gary, of course, has done a huge amount of detailed work. I will leave him to do the detail and I will just give a broad overview of what I see to be the key issues around this Bill, mindful of the European Court judgment. From an ACPO perspective, we are very keen to see the Government lay down some clear guidelines, as articulated by Chief Constable Sims at the Home Affairs Committee, that give absolute clarity about what is and what is not acceptable in relation to the retention of deeply sensitive personal data.
I fully understand the concerns of the public about that retention. The key points for me are as follows. First, I continue to stress that the retention of DNA is critical for serious crime investigationI emphasise serious. On the successes, one case in the press only yesterdayan historical case solved through the use of DNAdescribes better and more articulately than I can the reason why we need to use this proportionately, carefully and sensitively, and within some clear guidelines about what is acceptable in terms of retention, particularly in relation to unconvicted individuals.
I stress from a professional police perspective, however, that just because someone is not convicted of an offence, there are still good professional reasons why we need that information when dealing with serious crime. In my previous world, in Northern Ireland, some very dangerous people were entirely innocent in lawas in, they were never convictedbut I was greatly reassured that I had a better position in terms of keeping the public safe by knowing that I had some information, which, if crimes were committed by those individuals, I could use to deliver an effective investigation, certainly in accordance of article 2 of the Human Rights Act.
I will keep my comments as brief as that, because I am mindful that this is a Bill Committee, not the Home Affairs Committee. I shall hand over to Gary, who may want to touch on some key changes and proposals in the Bill, which we support fully.

Q 73

Nicholas Winterton: Thank you, Sir Hugh. I ask Gary Pugh to give his overview.

Gary Pugh: Thank you, Sir Nicholas. I am here today in the capacity of chair of the National DNA Database Strategy Board, which is relevant to the Bill in terms of the governance arrangements for the database. I hold that post as the nominee of ACPO.
I agree with Sir Hughs comments, to which I shall add my own from a police perspective, and certainly from the perspective of the National DNA Database Strategy Board. It is imperative that we get some guidance from Parliament and the Committee on retention periods in relation to those arrested and not convicted. This is a live and sensitive debate and I deal with this on a daily basis. There is a risk that if we do not deal with the issue, it could undermine confidence in police investigations generally.
I should like to mention three things. First, on the performance of and contribution to the database, there is an element of trading statistics here. There are two issues for me. I reinforce Sir Hughs points on violent crime and sexually motivated crime. You have only to think about the nature of those crimes to understand the potential for DNA to be transferred from the perpetrator to the victim or the crime scene, and therein lies the value of DNA. What we have done in the UK is much broader than that, however. We use DNA profiling in a much wider range of crime, particularly burglary and acquisitive crime. There is a different set of evidence for the value of that, in terms of the number of matches that are made from the national DNA database.
The majority of the output from the database is, in volume crime, in identifying potential offenders. I draw the Committees attention to the study in the StatesI think it is one of the most rigorous studiesthat looked at what difference DNA makes. It found that twice as many people were arrested when DNA was involved and twice as many people were put into the criminal justice system. That was a Department of Justice study.
The second broad area for us is the mechanics of the Bill and the proposals. Clearly, the retention periods are a matter for Parliament. Our plea is for simplicity in being able to administer the Bill and its implications when it becomes law. We want to be confident that the proposals can be implemented through what I would describe as a systems approach, rather than through police officers managing individual records. There is potential here for us to be managing 5 million individual records. That would draw on a lot of police resources that would be better used elsewhere.
Finally, on the deletion process, we strongly support a centrally managed, transparent process and clear guidance on that set out in regulations. We support that and feel that we need it in light of the recent media interest.
Those are the points that I would like to highlight in my opening statement. I shall close there.

Nicholas Winterton: Thank you very much, Mr. Pugh. The first question will be put by Alison Seabeck.

Q 74

Alison Seabeck: What percentage of the 33,000 crimes detected using the national DNA database were direct detections, as opposed to indirect detections, where somebody subsequently confessed to multiple crimes? That does not link into your comment about volume, but I will come back to that in a minute. Do you have figures to hand to show how convictions and crimes solved are split between the two categories?

Gary Pugh: The simple answer is no. There is a point here about the contribution that DNA profiling makes and, in a sense, we are looking for a causal link. We can identify those cases in which there was a DNA match and a detection, but the precise input provided by that the DNA match would almost require a case-by-case study. That is not to duck the issue, but to say that that is the way that DNA works in policing. DNA does not convict anyone; it provides a starting point for an investigation. I can go and look at the 33,000 detections in more detail, but I will come up against that problem.

Q 75

Alison Seabeck: It is just that you can see the potential criticism here. There are 33,000 detections, but only a small minority might have been direct detections, as opposed to people confessing to 15 burglaries. We are trying to work out the value of profiling, so this is quite an important issue.

Gary Pugh: I can say from my experience in the Metropolitan policeI must reinforce that this is about the role of DNA profiling and the databases in identifying a potential offender, giving us a name to start an investigationthat there are many cases where we already have a potential suspect, so we are talking about making a one-to-one comparison, rather than a search of the database. Thirty to 40 per cent. of detections result from identifying the offender in the Metropolitan police fingerprint and DNA databases. Therefore, by providing a name, DNA profiling and fingerprints make a powerful contribution in what is a difficult situation today, because people move around and our knowledge of communities, and even criminal communities, is not as it was many years ago.
Perhaps I can add another point, which relates to the evidence that we gave to the Home Affairs Committee. It was widely reported that only 0.67 per cent. of crimes were solved using DNA. That is perhaps unfair, in that in the vast majority of crime, we do not look for and we do not find DNA. You therefore need to look at the proportion of crimes in which we look for and find DNA. Many crimes, such as shoplifting and fraud, do not provide the opportunity to find DNA to compare with samples on the database. The 0.67 per cent perhaps undervalues the contribution of DNA profiling.

Q 76

Alison Seabeck: Do you have an assessment of the percentages based on what you have just described?

Gary Pugh: I have the figures, for example, for rape and other crimes. In the last year, there were 160 DNA matches in rape cases. I do not have a detailed breakdown, but I can provide you with more detail.

Q 77

Alison Seabeck: It is just that to understand your argument, the Committee probably needs to have a look at those figures.

Sir Hugh Orde: May I just add to that, Sir Nicholas? The issue of the complexity in policing is one that I have been trying to articulate since I took up my present job. It is hard to say that DNA was the decisive thing in a particular case, although with some rapes, you can pretty much say that the overwhelming evidence was provided by DNA because of the nature of its recovery; but DNA is part of the critical mass that gets you to the point where the prosecution can be mounted and it is part of the interview plan that allows officers to put a suspect in a place so that they have to give an explanation that the officers can then deconstruct and use to prove a point through different investigative means. We are talking about DNA being used in the holistic sense of an investigation, rather than saying precisely, DNA can solve this. A fingerprint is exactly the same; it puts a person in a place, and they then have to explain that. Without trying to be over-detailed, DNA profiling is just one technique, but we would argue that is a very important one, and there are many anecdotal cases. I fully understand that anecdotes make bad law.

Q 78

Alison Seabeck: I assume that the figures are based on DNA and fingerprints being part of the primary tranche of evidence, rather than anything else.

Sir Hugh Orde: If you read some background papers on murders in London last year, you find that senior investigating officers say that DNA was important in about 80 per cent. of those crimes, but they could not properly say that it was the reason for solving the crime.

Nicholas Winterton: Can I say to both our witnesses that if you are asked questions and you do not have the detailed answers, we will be very pleased to receive that information later, and of course it can be included in our papers as a memorandum or as a supplement to any evidence that you have already submitted?

Q 79

Tom Brake: We may get a sense of dĂ(c)jĂ vu with these questions, having gone through a similar set of questions with the Home Affairs Committee. Nevertheless, I want to come back to this question of the cost-effectiveness of DNA, because I think that in both of your statements you have stated that DNA is effective in tackling crime. Clearly it is effective, but we also now know and have received written confirmation that there is no independent assessment of the cost-effectiveness of DNA techniques. Therefore, it may well be that training officers in how to deal with rape cases, such as the Warboys case, is more effective at solving crime than DNA is.
In the Home Affairs Committee, we have had Greg Hands giving evidence in which DNA was taken from him as a Member of Parliament and from his extended family, including his elderly aunts, with police officers travelling the length and breadth of the country to collect that information. I would like some guarantee from you that there is actually something that can demonstrate that DNA is an effective use of taxpayers money, in preference to using that money to recruit more officers, provide more training or in another way, because we do not need the Bill to concentrate on DNA if, in fact, there are more effective ways of tackling crime.

Sir Hugh Orde: As I have just described, DNA is one of the techniques. That does not detract from the fact that there are individual cases where we have not got it right. We fully accept that, on occasion, police officers do not get it right, and training has a critical part to play in effective police investigation.
However, I want to step back from saying that, by taking away the money from investing in DNA, we could do something that is likely to be more effective. Frankly, the reason for that is that, in serious crime, where the costs of an extended investigation are likely to be exponentially higher than in the routine of the businesswe do not use DNA for that anyway, so it is not part of the argumentI would be deeply nervous if we lost the technique. I think it is essential.
We have to keep ahead. We need the technology. As technology has got better, as we have advanced the processes and the methods by which we capture DNA and develop it, the use of DNA has become more effective. The value is huge, but it is very hard to put a value on it and say, This costs x-thousand pounds and if I shifted that to something else, I could be more effective. It is how you carve up the police cake.
Where there is some value is not in that end of the business, but in having claritynot about the cost, but the confidence. Where the Bill goes a substantial way post the judgment is hopefully to give the confidence that DNA will be properly managed and that it is Parliament that has decided what is acceptable and not police officers dealing with this flaky idea of what is an exceptional circumstance. I think thats the real thing. It is an opportunity-cost, but I think it is very important.

Gary Pugh: I would add to that. We have had the dialogue. There is not an underlying business case, if you like, for the use of DNA profiling but, as I have said before in other forums, there is not an underlying business case for other aspects of policing.
What I would say is that we do not use DNA in dealing with a lot of relatively minor crime. Perhaps to add to my comments earlier, I should say that there is a forensic interventiona scene examinationonly in about 17 per cent. of recorded crimes. So we are focused on using DNA profiling on those crimes where we are likely to recover DNA, particularly serious acquisitive crime and violent crime, and on those crimes where a search of the database may, as Sir Hugh said, provide a name that is a starting point for the investigation.
In many of those instances, we would not have got that name by any other route. So an investment in other aspects of policing would not have given us the name of that suspect to start an investigation. Therein lies some of the value of DNA profiling and the database.

Q 80

Tony Baldry: Mr. Pugh, you said that DNA does not convict anyone, but of course around the country forces now have cold case review teams and very often the only evidence that the police and, in due course, the CPS will have is the DNA evidence. That is exactly what the cold case review team does: it takes DNA evidence, it compares it and it is making quite sure that people who might have committed rapes or murders 10, 15, 20 years ago actually get caught. That is right, is it not?

Gary Pugh: Yes.

Q 81

Tony Baldry: And DNA is an incredibly useful tool for the police to have in their armoury?

Gary Pugh: Yes.

Q 82

Tony Baldry: I do not think anyone is seriously suggesting that you should have the opportunity of anything other than being able to use DNA. Is not the issue public concern about innocent people having their DNA retained?
I think, Sir Hugh, you put it rather well, really, because it seemed to me as a defence counsel that you got it absolutely right. So far as the police are concerned, there are three kinds of people. There are those who are guilty; there are those who are not guilty; and there are those who the police think, know and feel are guilty but they just have not managed to get enough evidence to convict them.
Is there not a suspicion among large numbers of members of the general public that even though you may not actually have managed to bring a prosecution, sod it, you are jolly well going to keep their DNA, as much as anything to say to them, We think youre guilty; we think theres something untoward about you, and this is a way were going to retain that information. Is not that a concern that many people have?

Sir Hugh Orde: I think it is slightly more sophisticated than a sort of Sod it, well keep it approach. The reality of policingI can talk about the real world in which I and my officers operateis not black and white. You are absolutely right; it is the grey area that we are talking about. People who are guilty, we understand. The people we are talking about are those who are lawfully arrested but not convicted.
Within that spectrum, you have people who are entirely innocent in law at one end, and people who in our judgment and based on our intelligence are extremely dangerous people who have been acquitted, or who have never been through a court, because, for example, the witnesses are so terrified they will not give evidence. They are people who are then back out in communities committing serious damage. We think we need a proper system, subject to Parliaments rules, to retain their DNA for the safety of the wider community. You are absolutely right. That is the judgment call that we are saying, and my colleague Chris Sims said, we need guidance on.

Q 83

Tony Baldry: Where in that spectrum do you consider my hon. Friend the Member for Ashford to come?

Sir Hugh Orde: I am afraid I do not know, because I do not know about the individual case.

Q 84

Tony Baldry: Sir Hugh, if you do not know about the individual case, you must be one of very few people in the country who does not know about Damian Greens offices being raided and his being arrested for terrorism. If you are telling this Committee that you do not know about that, I am extremely surprised .

Sir Hugh Orde: I did not know where he worked from, and I was fairly busy in Northern Ireland at the time, keeping my officers and my community alive. It was not my business.
The point you make is a good one, however. There are individual cases that, for whatever reason, are deemed exceptional. There is an issue of chief officers having to consider whether they can deal with that within the current guidelines. What we are saying is that we want clearer guidelines around the routine of the business, not the exceptions. I am happy to accept, and I accept absolutely, that there are exceptional cases. In exceptional cases I do think that we can get more consistency between chief constables. I have looked at the numbers. There is a variety of interpretations of what is exceptional, but in that case the DNA database issue was dealt with by a chief and the material was removedunless you are going to tell me otherwise.

Q 85

Tony Baldry: I am going to tell you otherwise. Damien Greens DNA has yet to be removed. Can you give any justification or reason why it should be retained?

Sir Hugh Orde: No. It is a matter for the chief constable who retains and owns the data, not for the president of the Association of Chief Police Officers.

Q 86

Tony Baldry: No. You very kindly gave the Committee a spectrum of people, from those who are truly innocent onwards. By what possible justification, using that spectrum, could Damien Greens DNA be retained?

Sir Hugh Orde: That is a matter for the chief officer involved in that case. That is something that we have made very clear. We do feel that it is the right way for that to be. We are held to account, or the individual chiefs are held to account. When I gave evidence to the Home Affairs Committee, when I took over this job, I made the pointit is in the evidencethat I no longer have a command. I am not responsible for, and we fiercely defend the operational independence of, chief officers. I understand the question and Im happy to refer it to the relevant chief officer to give you an answer.

Nicholas Winterton: Can I say to Tony Baldry that I think we have taken that specific issue far enough? Can I also say to Sir Hugh I fully understand why you did not appreciate to whom Mr. Baldry was referring when he talked about the hon. Member for Ashford. I am confident that if Mr. Baldry had said Damian Green you would have known immediately of this case.

Sir Hugh Orde: Thank you. We do get the newspapers in Northern Ireland. We need to clarify this, because I understood that it had been removed. If I am wrong, I apologise, but I look to my colleague and we thought that it had.

Tony Baldry: On Second Reading, my hon. Friend made it clearit is recorded in Hansardthat it has not been removed.

Sir Hugh Orde: If I am incorrect, I am happy to write.

Q 87

Tony Baldry: With respect, my point is this. I hope, Sir Hugh, that you will understand that large numbers of our constituents see no conceivable justification or reason why someone in those circumstances should have their DNA retained on the record. They infer a degree of spitefulness, and thus feel it reflected on them when their DNA is taken by the police. That, it seems to me, is one of the issues that you must consider.
If chief constables act in different ways and consider that they are not acting unreasonably, do we not need to move to the sort of system that the Chairman of the Select Committee on Home Affairs suggested on Second Readingan independent arbiter to determine what DNA should be retained and what DNA should be deleted?

Sir Hugh Orde: I think it is exceptional. As we said in our opening remarks, we are very keen for this to be codified by Parliament, to the point where you remove 90 per cent. or even 99 per cent. of these issues, because there will be absolute clarity on what can be retained and for how long. I still think that there will be some cases where we would need the flexibility for chief officers to make the decisionit could be a malicious allegation, or the sample was volunteered. Although there are plans for people who volunteer to have their DNA takenperhaps they are now outside the loopbut in cases of mistaken identity or something like that, where it is absolutely clear that it should not be on the database, it is not right, we should be able to make those decisions.
The more we narrow that, the more I can deliver consistency across the current structure of policing, which as you know is 44 forces with 44 chiefs. You have to look at each case, and if one looks at refusals to date, they vary from 0 per cent. to 50 per cent. granted. Of course, there is a huge disparity of numbers in that, and some forces had only two requests. I am not surprised; others had many more.

Nicholas Winterton: May I say to the Committee, and our witnesses, that the Minister has indicated to me that Damian Greens name has been taken off the DNA databaseas far as the Minister is aware. No doubt, Mr. Baldry, you can check that. No doubt, the Minister will himself check and advise us accordingly, if what I have said is inaccurate. I have no doubt that Sir Hugh, in his elevated position, and Gary Pugh, will also make inquiries.

Robert Flello: Are there not two possible issues? The first is the confidence of knowing that if your DNA is taken and recorded, you will not be wrongly accused of something at a later date because of a problem with that DNA evidence. Is that not the underlying reason why many people are a little concerned about having their DNA retained in the circumstances that we have described?
The second issue is the knowledge that ones DNA details are recorded. A person might know that his neighbour had had a visit from the police at a certain time in the morninghe saw the cars pulling up and the officers hammering on the doorbut he will not necessarily know, unless the neighbour decides to tell everyone, that his neighbours DNA had been retained and was on record. May I have your comments on those two possibilities?

Gary Pugh: In terms of wrongful conviction or accusation, I am confident that the DNA profiling method that we use is very robust; it is controlled and accredited. We in the UK have invested heavily in setting scientific standards that the rest of the world has adopted.
In terms of the results, I am entirely confident of their reliability. I think, though, that I would make the point that if we find DNA that we believe to be from the perpetrator on the victim or at the crime scene, that is one of the strongest safeguards against a false accusation or wrongful conviction. A lot of what we do is elimination. Finding DNA or fingerprints is, I believe, a safeguard for the criminal justice system.
As for the sensitivities around DNA and its retention, I understand that. People have written to me and they are very concerned. I think that that relates to the debate about DNA as the blueprint of life, and members of the public are very concerned about what we will do with the samples. The legislation contains proposals for the destruction of the samples, and therefore of the cellular material. Some of the concernsthat we might sell the cellular samples to insurance companies, for examplewill be removed by that destruction. However, we have been very firm in resisting access to those samples for any purpose other than investigating crime, and we have taken cases all the way to the High Court on that, so we have put some safeguards in there.
My final point on sensitivity is that there is a legitimate debate about the use of genetic testing. That is not an issue about the DNA database. There is a DNA ethics group that Ministers have set up, and the chair of that group and I are looking at that debate. It is potentially possibleI stress the word potentiallyto test some unidentified body fluid at a crime scene for medical conditions and so on, which takes us into a highly sensitive area. The chair of the ethics committee, who sits on the board, and I are clear that we need to deal with the ethics of that first, before we fall into doing it. That is not a database issue, but one about information from the crime scene that might help us to identify the perpetrator. I draw that clear distinction.

Q 88

Shona McIsaac: There are people on the database who have been convicted of more minor crimes. That obviously might assist in the future, as you have suggested, in detecting a more serious crime that might be committed, but I would like some idea of how likely it is that someone who commits a minor offence will go on to commit a more serious one, with regard to the population as a whole.

Sir Hugh Orde: Some interesting work by the Jill Dando Institute suggests that criminals do not keep to one sort of crime, so we would argue that if someone has been arrested for a fairly minor offence, it does not necessarily mean they will not go on to commit more serious offences. On the other side, one could argue that many murderers commit only one offence of murder, perhaps in a domestic environment. It is one of the most serious crimes, but it does not necessarily follow that they will have committed more minor crimes. Our preferred choice of keeping it simple and straightforward recognises that for a substantive conviction for an offence, the sample would stay on the database to cover that.
There is also some evidence from cases of sex offendersI go back into the mists of time to when I ran the murder teams in south-west London. An example is the case of Robert Black and the Maxwell, Hogg and Harper murders, which took place across the country many years ago. There is evidence, if you go back into criminal histories, that people start with low-level offences, certainly with sex crimes. It can start with indecent exposure and slowly escalate over time to far more serious crimes. I would be nervous about a system in which we tried to say that criminal damage is different from an assault or something else. The simpler we keep it, the more likely we are to have a database with some added value. I do not know whether Gary has the same view.

Gary Pugh: From the point of view of evidence, our view is that we need some base of evidencethat relates to the debate about confidence in the databaseand, therefore, the retention of samples from those who are arrested but not convicted. The Jill Dando Institute did some initial work for the consultation. I have since seen in the Governments proposals the base of evidence that shows that in a period of six years after an arrest, the risk of being arrested again is higher than for the population at large, which provides some of the basis for the current proposals on retention. That is where we need to look, in a sense, for the evidence that supports retention periods.

Q 89

Shona McIsaac: If the database is so vital in solving serious crime, should we actually try to get more people on it? Some people have even suggested that the whole population should be on the database. If the whole population was on the database, would there then be a civil liberties issue?

Sir Hugh Orde: I think there is. I do not think that there is any desire within policing to expand it in that way at all. I certainly have not sensed that from my colleagues. We think the current system is about right. We fully understand the ruling of the European Court, so we are now looking for some clarity on what is reasonable. I very much believe that is not a judgment we should make; it is a judgment that Parliament should makeit is that important. That is the reason for our support for the proposals on a clearly defined period of time that we think is reasonable and proportionate and balanced against the greater good in terms of protecting the public. We have been very clear: this is not a science. I am sure that if we had everybody on the database, we would probably solve more crime, but that would be grossly disproportionate to what we are trying to deal with, which is getting the balance right in an imprecise scienceinvestigation, rather than the specifics of DNA. DNA adds huge value. That is my professional judgment and, indeed, the evidence based on convictions, but I would be nervous about stepping too far, because you then lose the confidence of the wider community because they see this as a Big Brother state. What we are asking for is clarity about what is reasonable.

Q 90

Shona McIsaac: Many people are worried about false matches and have suggested that if the database grows, there could be more false matches. I would like your comments on that. I have a basic scientific background and I reckon that the more people you have, the less likely it is that there will be false matches.

Gary Pugh: Our current DNA profiling method uses 10 points of comparison on the DNA molecule. Therefore it is limited in its discriminating power by 10 points. We certainly recognisethe term people use is adventitious matchesthat it is possible that two people could have the same profile, but the discriminating power currently is one in 1 billion. It will identify one person in 1 billion, taking the statistical argument. The board has taken the decision in principle to move to a 15-loci system, which takes us into a much, much higher number: one init is almost a meaningless number because there are so many noughts.

Q 91

Shona McIsaac: Some countries already use the 15 points of comparison, dont they?

Gary Pugh: The 15 points of comparison are used primarily in paternity cases and mass disasters. Other countries have taken the decision to move to 15 loci, and within Europe there is a view that we should all, in a sense, migrate to the same system, but there are different systems around the world, and other countries are at different states of development. We have decided, in the board, to go to 15 loci. That will deal with the adventitious matches.

Q 92

Shona McIsaac: How long is that likely to take?

Gary Pugh: In terms of the implementation, I have met the manufacturers who produce the kits that do the analysisthe chemistry. They have proprietary kits on the market at the moment. There will need to be a validation study and we will need to be satisfiedme, the chair of the ethics group, the forensic science regulator and othersthat the science is sound and the statistics are sound. I anticipate that will take about 12 months.

Q 93

Andrew Rosindell: Clearly, the issue is finding the right balance between retaining data on peoples DNA and ensuring that we do not go so far that it infringes peoples rights, freedoms and civil liberties. What Parliament clearly has to decide in this legislation is where that balance lies. Will you tell us where you think the balance lies? Is it as proposed in the Bill? Do you think that it goes too far or not far enough? What do you think of the Scottish system? Perhaps you can enlighten us on your own view.

Sir Hugh Orde: Broadly, we are where the Bill is. The initial response from ACPO, you will remember, was a 10-year period, but mindful of the comments Gary has already made on the science of a six-year cut-off, I think we are persuaded. That gives us confidence that we can do our job, the public can be protected and the public can have reassurance that a very careful balance is being struck by Parliament and this is the right way to go.
On the Scottish system, I shall make a couple of brief points. Gary may have some more detail. Garys plea at the beginning was to keep it simple. Of course, the Scottish DNA contribution to the database is about 4.5 per cent., and it is quite a complex system. To multiply that to the tune of 19 times would be very difficult administratively. For the unconvicted data in the Scottish system, which as you know are linked to sex crimes or crimes of a sexual nature, the period is three years, followed by potential appeals to a sheriff every two years. That is a complicated system in a different judicial structure, where the fiscal, of course, has a major role to play. Gary may want to add to that.

Gary Pugh: The Scottish model is based on three years and, as Sir Hugh described, applies to sexually motivated crime. I will just reinforce the two comments. It is a different system, which, from what we have seen of it, requires quite a high degree of manual input to manage all those records. As I said, the scale of doing so in England and Wales would be significant, and it would take up an inordinate amount of police resources to manage the Scottish system.
On the retention period adopted in Scotlandit was reviewed by Professor Frasermy understanding is that there is not the same base of evidence behind it as there is behind the system in England and Wales, which arrives at six years rather than three. From our perspective, we need a view from Parliamentalthough I do not wish to push it back on youthat decides on the basis of the information what that retention period should be.

Q 94

Simon Burns: Can I press you on the answer you gave my colleague, Mr. Rosindell? You both said that you were broadly content, or in agreement, with the provisions in the Bill for six years. That basically means that you concede that DNA should be destroyed or not held after a time period. What I do not understand is that if you have conceded the principle, why six years? Why should it be such a long period? What, in your mind, is so good about six years, apart from the fact that it is in a Bill produced by the Government?

Sir Hugh Orde: I will ask Gary, but it very much involves, as you said, the suggestion that the evidence of reoffending after six years is something to hang the six years on. Maybe he will be able to give a bit more detail.

Gary Pugh: We very much want something rooted in evidence or some analysis of the risk. The information produced in support of the Bill certainly persuades us that six years is right in terms of minimising that risk. From our perspective, if an individual with a single arrest event is not convicted, the evidence points to the fact that after six years, they are no more likely to be arrested than the population at large.

Q 95

Simon Burns: Hang on a minute. There are cases in this countryI suspect quite a lot of themwhen people are arrested completely wrongly. They are totally innocent of the crime with which they are charged, they have a blameless life vis-Ă -vis committing crimes before that point and they are found innocent, or it is decided not to proceed with the court case, yet the DNA is on record. Why do you need six years to keep that DNA in order to check, because of other statistics on known criminals who have committed offences, whether they will reoffend?

Gary Pugh: My answer is that the process for dealing with that is the deletion process, or the exceptional case procedure as it is now called. If we strengthen that, making it more consistent and transparent, the individual you described who poses no risk should be removed via that process.

Q 96

Simon Burns: At the moment, in my county of Essex, previous chief constablesI do not know about the current one; there has just been a changerefused every request in every case I have had involving a constituent who made representations to the chief constable. Those people had never in their life committed an offence. One person was never charged with any offence when their DNA was taken. Another was actually the victim of crime. It then transpired that the court case collapsed, and the magistrates expressed amazement that any prosecution was made, as he was the victim of the crime, not the perpetrator. Yet the chief constable would not remove the DNA.
You can argueit is a cop-out in one waythat the Bill will, hopefully, redress such situations and that Parliament should express its view in a uniform way. But it does not get around the original point of the question: why should someone who has no record of committing a crime, who is never charged with or convicted of a crime, have their DNA held for six years?

Sir Hugh Orde: If I could find a case where I was absolutely satisfied that the person was completely innocentwell, life is not like that. There may be individual cases exactly like that. The exceptional case mayI understand your point about consistencycover some of those cases. If we can deal the majority out into a routine system, then perhaps those that are truly exceptional can still come to the attention of chief constables.
I absolutely undertake to try to develop some consistency across the country because there is, as you say, an inconsistent approach. I am unsurprised by that. We have a structure of 44 chiefs who have different views on what is exceptional and on each case on its merits. Equally, the counter-argument is that there are some people who are equally innocent in law but who are extremely dangerous. I do not have the skill to distil one from the other. None of us does, which is why we are asking for claritywhere Parliament says, In our view, this is the best balance we can strike. I accept that it will not be perfect in any way, shape or form.

Q 97

Tom Brake: Can we talk a little about the practicalities of how that retention and deletion will work? Clearly it is quite complicated in terms of who has their DNA retainedwhether they are adults or under-18s, whether the DNA is retained for six, five or three years and whether they are exceptional cases. What prospect is there of that process operating with anything like 90 per cent. effectiveness in all the different police forces that presumably are all using different systems? Perhaps they are not; they may all be using identical systems and so can be calibrated to do this automatically. At a glance, my impression is that whether things happen at the time that anyone expects will be very hit and miss.

Sir Hugh Orde: I shall ask Gary to do the detail, but if we take the date of arrest as a starting point, we think there is a technical solution.

Gary Pugh: It is about the police national computer and the database on it of information linked to the fingerprint database and to the DNA database. There is an existing system that manages this process. The proposed approach allows us effectively to develop an algorithm so that when we start from the point of arrest we know the point at which something should be deleted. It is possible that someone is rearrested and the clock restarts. The current system does not propose a human intervention to make an assessment, which is where we would get into a heavy resource requirement on the police service. I am reassured that it should be able to be done by the system, by designing an algorithm that highlights the records that will need to be destroyed at the appropriate point.

Q 98

Tom Brake: Is it one algorithm for each and every police force or will it vary?

Gary Pugh: It is the police national computer which is UK-wide effectively, but certainly England and Wales come within it. All the records are managed centrally.

Q 99

Tom Brake: While I understand that an algorithm is the perfect solution, have you already identified circumstances in which the algorithm will not work, based on some of the categories we have listed? Will it require a manual intervention? If not, what solution do you propose to deal with exceptions where the algorithm does not work?

Gary Pugh: No, because it is a set of rules for which an algorithm can be written. I am confident that although it may be a complex algorithm, it can be written and it can be done. I also draw some comfort from the fact that there is a system in the PNC for weeding criminal records, although not for addressing this issue. So it has been done beforein terms of how we weed records based on previous legislation and the way we operated the PNC. My confidence is high that an algorithm can be written that will flag up records that need to be deleted.
There is a communication link between the relevant databases that will give an alert for the need for deletion. The system will still need to be managed, developed and implemented but it is a lot easier than requiring, as the Scottish system does, a human intervention.

Q 100

Tom Brake: Presumably people will get a letter saying, Congratulations, your details have been deleted from the DNA database.

Gary Pugh: To be honest, I cannot recall. I think we are trying to avoid that approach. I apologise, I cannot remember exactly what is in the Bill, but certainly the idea of individually notifying people is clearly not something that we would want because it requires more resources, but I cannot actually remember.

Sir Hugh Orde: I would not be keen on that. Provided it is made explicit that the rules are strictly adhered to and are enshrined in primary legislation, I am comfortable. I would not want to have to send letters out. I am sure it could be done but there is a cost implication that you would have to think seriously about. It would increase the human effort in what we think is an IT solution.

Q 101

Tom Brake: That may be something for Ministers to think about.

Sir Hugh Orde: We would be delighted if they did.

Q 102

Simon Burns: On that point, if someone is very unhappy that their DNA is on a database when they have committed no offences, surely they have to be told, if only to reassure them that it has been removed, regardless of the fact that it might cost some money. Given the money that public bodies and Governments spend in other areas that one could question, surely the least one could do is send written confirmation to the individual to put their mind at rest that they are no longer on the database. It seems odd that you think that you should not send out confirmation letters just on cost grounds. What happens if people write to get an assurance? There are some peopleit may seem extraordinarywho are deeply suspicious of the state and want that assurance.

Gary Pugh: My understanding is that as far as the removal process goes, there has to be personal communication, because the individual will have made an application and they need to know the outcome. How we manage what will become an automated deletion process, not requiring an intervention from someone, has some practical issues. I am sorry, but I do not know the detail of how we might deal with that. I think it is an implementation issue, as well as an issue of how we notify the individual that there has been deletion, or reassure them that it has taken place.

Sir Hugh Orde: A practical issue is knowing where those people are six years down the line. If they have had no other interaction with the police, we may not even know where they are. My concern is that it may create a huge administrative tail.

Simon Burns: The Inland Revenue would never make that argument if they wanted money from someone and, I suspect, police officers would not make that argument if they wanted to interview someone. They would find out where that person was.

Sir Hugh Orde: If it is the will of Parliament that we put a huge effort into finding people to tell them that something has been removed from the database, so be it. However, it is right to point out that, at a time of huge cutbacks in the public sector, if you want me to divert resources, there is a cost and a consequence in terms of what my colleagues with operational responsibility can deliver. I am not saying that you cannot do it, I am saying that it may take some investigative effort. If I am to be asked to take people off live crime investigations to do it, you and your colleagues need a debate about that.

Q 103

Mark Oaten: On that point, what happens at the moment? Did Damian Green, for example, get a letter or certificate saying that he had been removed? Is there current practice for doing that? There must be, so can we not replicate that practice? I am sure that I read somewhere in all the piles of paper that there was some system for individuals to request and be given a certificate to prove that their DNA had been removed. People are nodding at the back of the room. Clearly someone has thought about it and there is provision in the Bill for it to happen. I am surprised that people do not know about that.

Sir Hugh Orde: Under exceptional circumstances there is a communication so that they know the outcome of the decision. That is because the individual has proactively sought a response from the police. That is different from someone who six years ago was put into a system, may have moved on and, by definition, has had no further criminal contact with the police, otherwise they would be back on the system. I have not seen anything about the particular issue of a certificate.

Mark Oaten: It is close to working its way from the back to you.

Sir Hugh Orde: New section 64ZM, on page 37, says:
If a person makes a request to the responsible chief officer of police to be notified when anything relating to the person is destroyed under any of sections 64ZA to 64ZJ, the responsible chief officer of police or a person authorised....must within three months of the request issue the person with a certificate.
That is fine; that is a proactive approach by the individual. I do not have an issue with that. There is no administrative tail to it.

Q 104

Nicholas Winterton: May I seek, from the Chair, one point of clarification? Are you saying that you believe that the system will guarantee that after six years a name of somebody who has had no further contact with the policewho has committed no further offencewill be automatically removed from the database?

Sir Hugh Orde: The profile will be deleted through an IT solution, yes.

Nicholas Winterton: I am grateful, as Chairman, for that clarification.

Q 105

Tom Brake: For the sake of clarity, at the point where the deletion occurs, is it a complete deletion or is the profile deleted but the name and details retained? Therefore, if someone subsequently approached the police to ask, Was I ever on the database?, would the police be able to confirm, Yes, you were but you have been deleted and we have no records; or would they then not be able to say anything about whether they had or had not at any point been on the database?

Sir Hugh Orde: The profile goes but we would still be able to tell them.

Q 106

Tom Brake: So there would still be a name and you would be able to confirm whether people had or had not been on?

Sir Hugh Orde: Yes.

Nicholas Winterton: This questioning has stimulated one of the Ministers to put a question.

Q 107

Alan Campbell: It is a matter of clarification for me, Sir Nicholas. Going back to Mr. Burns point about what is most contentious about retaining DNAthat is, the issue of innocencelet us say that someone is arrested but found to be innocent and does not go on to offend at a later date, and that someone else is innocent initially but does go on to offend later. Is it not a fact that they are both part of the same group, which, according to research, is more likely than the general population to be arrested again? Is it not the case that the time scale for that is beyond six years, though for the purpose of the Bill the Government have chosen six years as a cautious cut-off point? Is that not the case?

Gary Pugh: The simple answer is yes. There is a tail and there is a risk. The risk lies in the individual who is arrested, not convicted, and after six years commits a crimepossibly a violent oneand we would not then detect that individual. That is the risk we are balancing against retention.

Q 108

Alan Campbell: If that is the evidential base for the system that is being proposed, what is the evidential base for another preferred option for many, which is the Scottish system?

Gary Pugh: I am not aware that there is another evidential base, or an evidential base as you describe for the Scottish system.

Q 109

Alan Campbell: Okay; and there was not one when it was established.
One final point, if I may, Sir Nicholas, is a question to Sir Hugh. I am not asking you to speak for your colleagues north of the border, but if at some point you had found yourself as a chief police officer north of the borderand if the system that we are proposing was in place, as opposed to the Scottish modelsome 23 serious crimes would have been detected, whereas with the Scottish model they would not. Have I explained that properly?

Sir Hugh Orde: I understand your point. They are different systems and one could make a hypothetical case where we would get a result in England and Wales but not under the Scottish system. As for the notion of me going to Scotland, I suspect they are rebuilding Hadrians wall as we speak. That is not something I plan to do. There are differences. Although the judgment refers to the Scottish system as one that would fulfil the criteria that they were looking for, the big complexity that concerns us is that the Scottish legislation is 4.5 per cent. of the total database and it is a bureaucratic system. There is real potential for searching the database and, by the time the bureaucracy has been dealt with, finding that a search is unlawful because people just have not managed to get through the system and it should have been deleted. I am not sure what the law is when that happens. It is a complicated system and requires a lot of human effort.
As I have already said, I know my colleagues and can speak with authority on this. We are spending a lot of time trying to focus on the front endthe operational endof policing. They would be nervous about a system that meant they had to take more resources from front-end service delivery to deal with a system that is, by definition, far more complicated and bureaucratic.

Q 110

Alan Campbell: So are you telling me that some of your Scottish colleagues would prefer the systems that we are proposing, as opposed to the one that they have?

Sir Hugh Orde: I have not asked them. The point I am making is to do with our assessment of what works in Scotland, which is a different jurisdiction. I am delighted to say that I do not speak for ACPO (Scotland). It is a different legal system with different requirements and they came up with a different set of rules. We are saying, on behalf of our colleagues in England and Wales who have 95.5 per cent. of the system, that it would be complicated, and part of that is scale rather than the way it is done.

Nicholas Winterton: A point of fact, as you know, Minister, is that ACPO does not operate in Scotland. We have to get that on the record.

Q 111

Simon Burns: I think I heard the Minister rightly. He started his questions by saying, On a point of clarification. I think that is correct. Do you find it slightly surprising that a Minister who is taking this Bill through Parliament needs clarification from you on his own Bill, Sir Hugh? Presumably he has been totally briefed on the Bill and does not need clarification

Nicholas Winterton: You need not answer that question, Sir Hugh.

Sir Hugh Orde: Thank you, Sir Nicholas. I am deeply grateful.

Q 112

Simon Burns: Would you then think that the purpose of those questions was not so much clarification, but that the Minister asked because he knows what your organisation thinks and knew that if he asked questions in such a way as to seek clarification he would get answers that confirmed what he wanted to hearwhat the Bill saysthereby suggesting that there was more backing for the Governments Bill?

Nicholas Winterton: Sir Hugh Orde, you may, if you wish, answer that question. If you do not wish to

Sir Hugh Orde: I am here, as is Gary, to try to give you the professional view of what we think is important, and we do think DNA is a vital part of the fight against crime. I am mindful that Committee members represent constituents who have a right to be protected. The tricky bit, on which we seek your help, guidance and support, is coming up with a system that has the authority of Parliament, rather than being based on local decision making by disparate chief constables. I fully understand that the balance will not be perfect: it is complicated, difficult and sensitive and I am mindful of individuals and their human rights. That is what we are asking for.
It is a difficult equation, but our professional judgment is that six years is reasonable, subject to the caveats that are in the Bill and which you have already discussed.

Nicholas Winterton: Sir Hugh, I think it is quite refreshingI can say that as somebody who has been in Parliament for quite a long timethat a Minister is actually prepared to ask a question of a professional police officer. Ministers are not infallible and neither are Members of Parliament, although Ministers are MPs. I found it quite refreshing. I also found Sir Hugh Ordes diplomacy in his response refreshing.

Simon Burns: You do not think, a little naive?

Nicholas Winterton: From the Chair, I would not comment on that matter. The Minister saw fit to ask a question and he has every right to do so, because it is important that during the witness sessions we flush out as much information as possible, including the thoughts and views of the police on this issue, because they are, in some instances, able to convict people who have been found guilty of an offence who otherwise would have been found innocent.
Are there any further questions from Committee members?

Q 113

Andrew Rosindell: Would Sir Hugh or Mr. Pugh tell us what they think is a reasonable periodif any period at allto retain someones DNA, if they are proved innocent having been charged but found not guilty? How long would you consider is reasonable to keep that DNA data?

Sir Hugh Orde: I go back to the six-year suggestion. As I tried to articulate at the beginning, just because someone is found not guilty does not mean that they have not committed a crime; it means that we have failed to achieve the very high standard, quite properly, of proof beyond reasonable doubt to convict. That is where the complexity lies and it is the grey area of policing that we are talking about. We have to make decisions day in, day out around handling some of these people, who are in your communities and who are dangerous. It is a great reassurance to me as chief, and to many of my investigators, to know that we have some handle on these people.
We have not raised the issue to dateI think it is worth mentioning, although it is very hard to quantifyof the deterrent effect when one of the players knows that we have their DNA on the database if they are considering continuing their criminal career, having been acquitted of a potentially serious crime. This is exactly the grey area of policing that we are talking about. We think that six years strikes the balance. I am not a lawyer, but I also hope that it will satisfy the European Court that it is no longer a blanket policy and that it is now compliant with Strasbourg law.

Q 114

Andrew Rosindell: How about somebody who is not even charged where their DNA is taken, the case is dropped and they walk away? Damian Green, for example, was arrested but not charged in the end. How long would you say is reasonable to keep DNA in that circumstance?

Sir Hugh Orde: We have, on the grounds of simplicity and professional judgment, gone for the same type. Just because somebody is not charged does not mean that they are not potentially very dangerous.

Q 115

Simon Burns: Damian Green?

Sir Hugh Orde: Individual cases are difficult. I could cite some examples from my previous lifeI will not for obvious reasonswhere I had some extremely dangerous people who were arrested and released without charge and, trust me, I needed their DNA. I have it and I can live with that.

Q 116

Andrew Rosindell: So if you go for six years, what difference would seven years make?

Sir Hugh Orde: It would increase our opportunities for those who decide to step across the line between year six and year seven. I make no apology for putting it that way. It is a matter for Parliament to decide. As I have said, our initial submission was 10 years, because, as one would expect of professional officers, we like to keep every opportunity that we can, but, on reflection and on the drafting of the Bill, we were happy with six. That was the professional judgment of my senior colleagues and we are happy with six years. You can make an argument for any number of yearsfor ever would increase the chances again. The balance has to be between being reasonable and proportionate and being mindful of current Strasbourg law and the judgment of the European Court, which has generated some of this debate. What I am saying on behalf of my chief officers is that we think that six years is okay.

Q 117

Andrew Rosindell: So you think six is about right? Five years or seven years makes no difference; six is about the right balance.

Sir Hugh Orde: As I said, we can play with numbers all day. What we are saying is that our judgment and professional view for this Committee, and indeed my colleagues view for the Home Affairs Committee, is that six years is about right.

Q 118

Andrew Rosindell: Do you think that a number of criminals and even murderers would not have been convicted had the DNA data been deleted after that kind of period?

Sir Hugh Orde: Yes.

Gary Pugh: I can provide some examples as part of our response to the consultation. There were individuals who were arrested and no further action was taken, who went on to commit serious crimes including rape and murder.

Q 119

Andrew Rosindell: How many would you say are in that category?

Gary Pugh: I am sorry, but I cannot give you the precise numbers. I can look into it for you.

Sir Hugh Orde: It would help if we could give you some information. I do not know how many makes it valuable. If you are dealing with a rape or a murder, in my judgment it is not that many that actually makes that worth while.

Nicholas Winterton: I think the Minister of State would like to make a comment at this stage.

David Hanson: If it helps the Committee, in 2008-09 alone, the Association of Chief Police Officers criminal record office found that 79 rape, murder and manslaughter cases in England and Wales matched the DNA database. Of that number, 36 were found to have direct or specific value to the investigation, and 23 victims of serious crime would not have had justice under the Scottish model. Between three and six years is the Bill remit that we are currently talking about and last year alone, 23 individuals were convicted between three and six years for a serious crime.

Q 120

Simon Burns: May I ask the Minister of State a question? On the figures he has just given us, how many of those cases involved the DNA of an individual who already had a criminal record?

David Hanson: Those 79 individuals had been arrested but not convicted of any crime.

Simon Burns: Before? In their whole lives?

David Hanson: Yes. I would be happy to return to that in my evidence on Thursday.

Q 121

Nicholas Winterton: Sir Hugh and Mr. Pugh, you have been subjected to some fairly aggressive questioning, which is only appropriate on a subject as sensitive and as important as this. In light of those questions, is there any final comment that either or both of you would like to make to the Committee?

Sir Hugh Orde: I speak on behalf of both of us. No, there is not. I hope our presence here has been helpful. We are happy to provide any more information you need in written form, or happy to come back should that be helpful. Thank you for the opportunity.

Gary Pugh: I will respond to you in terms of data. There is data available and I will provide that to you on the issue around arrested not convicted. We have that data available and I can send that to you.

Nicholas Winterton: Thank you very much. On behalf of the Committee, I thank Gary Pugh and Sir Hugh Orde very much for their transparency and the helpfulness of the information that they provided. I believe that the Committee will go into the debate on the Bill with greater knowledge and more information than would otherwise have been the case. I thank you both very much for your helpful stay with us and for answering the questions so frankly.

Q 122

Nicholas Winterton: I welcome our new witnesses. We can go on if necessary, but perhaps it will not be necessary. Because of the Division that took place earlier, we can go on a little bit beyond 7 oclock, which is normally zero hour. We welcome Isabella Sankey, director of policy at Liberty, and Dr. Helen Wallace, the executive director of GeneWatch UK. May I ask you, as I did the previous witnesses, to each make a very brief introductory statement on your viewpositive and, if necessary, negativeof the Bill, the objectives and purpose of which we will debate? Isabella Sankey, may I ask you first to indicate your overview of the Bill?

Isabella Sankey: Thank you, Chair. The first thing to say is that at Liberty, we are not critical of absolutely everything in the Bill, which makes a very nice change. For example, we are very pleased to welcome the scaling down of reporting requirements with stop-and-search. We are glad that the proposals intend to allow ethnicity to continue to be recorded, as that is extremely important for monitoring purposes. We think that scaling back the bureaucracy of stop-and-search will be a useful way of freeing up more police time for the very important community engagement role that they have. Sadly, the proposals to continue to retain innocents DNA, in a blanket and indiscriminate way, have really overshadowed the positive elements of the Bill. It is on those proposals that we will focus as the Bill makes its way through Parliament.

Nicholas Winterton: Thank you very much indeed. That is very direct and very positive.

Dr. Helen Wallace: We have a very similar position to Liberty. First, we very much welcome the provision to destroy the samples, which we have been very concerned about in the past. However, on the retention of innocent peoples DNA profiles, we prefer something along the lines of the Scottish system. We have also highlighted the failure to delete the police national computer records, which we see as significant in terms of the individuals who contact us with concern about the DNA database. We have some other concerns about the provisions to expand the collection of DNA. We do not necessarily disagree in principle with some of the intentions behind those provisions, but we think that they are too widely drawn and that there could be some practical problems with them that have not been properly thought through.

Q 123

David Hanson: This will help to frame the debate. We have had to wrestle with this issue as Ministers and as parliamentarians, and we will have to wrestle with it during the next few weeks and months. However, I would like to start at the beginning.
Our figures show that, if we adopted the Scottish model as opposed to the model in the Bill, last year alone, there would have been 23 families of victims of rape, murder or manslaughter who would not have seen the individuals who committed those crimes brought to justice. That gives us the nub of our argument and, in a sense, I just want to clear the desk straight away, so I can get your view as to what we should do in that circumstance, when faced with potential evidence that brings 23 individuals to court and is proportionate, but we could not do that if we adopted the Scottish model. I think that ultimately that issue will frame our debate, in terms of the opposition to the Bill.

Dr. Helen Wallace: I have not seen the report on which those figures are based. I have asked for a copy of it.

David Hanson: I will send it to you.

Dr. Helen Wallace: I have looked at previous reports. However, my understanding of that research, where it has been cited elsewhere and from what the National Policing Improvement Agency and others have said about it, is that that is not what that research has found. That research has found a number of matches with innocent peoples DNA and senior police officers and senior detectives were asked whether they thought that those matches played an important role in those cases.
What that does not tell you is the extent to which those matches were necessary to solve those crimesin other words what role that matching played, as you heard from previous witnesses, in identifying those individuals to the extent that they might not otherwise have been identified. Until we see that information with regard to those cases, I am not prepared to say that that is true.

Q 124

David Hanson: I will happily look at what information we can put into the public domain during the passage of the Bill.
For the purposes of conjecture, however, let me just say something else. If we could prove that there was simply one case that was between three years and six years old and that DNA retention of innocent persons initial DNA led to a conviction in that case, would you still oppose the Bill? If we could prove that, would you still oppose the Bill?

Isabella Sankey: May I answer that question, because I take exactly the same position as Dr. Wallace on the issue of retention and we at Liberty would much prefer the Scottish system?
It is useful to hear the evidence that you have just cited although, as Dr. Wallace said, we have yet to see that evidence and we have found it very difficult to get hold of. As far as we are concerned, the evidence that has been published does absolutely nothing to demonstrate any statistical reason why retention for six years is necessary. The evidence that has been published by the Home Office demonstrates that it has only been able to extrapolate from three years of data that six years might be a useful figure. It is not actually based on an analysis of six years of data.
Also, and most importantly in our mind, there is the idea that you are comparing the likelihood of future arrest of those previously arrested with the future arrest of the rest of the population, not with the potential for future conviction. Equating arrest and conviction is an extremely dangerous road to go down in a free society and we were quite frankly shocked by the evidence when it was produced and we understand that it has been entirely written off in the scientific community.

Q 125

David Hanson: I just wanted to frame the debate, in the sense that this is a debate that we will be having, because all of us want to see people who are guilty being brought to conviction and justice given to families. Our point is what is the maximum period, within European regulations and the judgment that has been made, for which we can retain DNA, which respects rights and has an evidential base but which at the same time maximises the potential for convictions? I simply say that if the debate shows that there is within that period a reasonableness and that there are individuals who are ultimately convicted of crimes between three and six years old under this system, because their DNA has been retained, would you still oppose the Bill, because that system seems to me to be bringing justice to individuals? That is the debateI do not want to frame it. Colleagues will ask questions. But I think that is the nub of our debate.

Nicholas Winterton: Dr. Wallace, do you wish to come in again, because your colleague responded to a question that was put to you?

Dr. Helen Wallace: Yes. I think that the question is one of proportionality; that is what the legal question is. But I think that is also how I view the way that you make the decision. We need the information on the likely number of cases, to help us to weigh up the pros and cons. There are pros and there are cons, because there is a rights issue. Of course, it is not for GeneWatch to say what the policy isit is your decisionbut we need to be clear on what those figures are, to inform that decision.

Q 126

Shona McIsaac: You would accept, though, that our DNA is individual to each of us?

Dr. Helen Wallace: Yes.

Q 127

Shona McIsaac: So why do you believe that people are more worried about that individual profile being kept than about other forms of evidence? Surely, if DNA is so individual, false matches and so on are less likely than with other types of evidence. Why do you think people are so worried?

Dr. Helen Wallace: There are a range of worries. We get phone calls from people all the time, so I have talked to a lot of people about it. There is obviously concern about the samples which will be dealt with. They contain personal health information. Your DNA sequence can be used to track you or your relatives; your DNA is on the glass that you have been drinking from. People are concerned about potential surveillance. People are concerned about their names being on what is essentially a permanent list of suspects, which is what happens now that your record is retained on the police national computer saying that you have been arrested and your DNA has been taken. That can have practical implications, such as being shown to your employer.
On the issue of false matches, you have to be careful. DNA is unique to you, probably, unless you have an identical twin, but the profile that is kept on the database is not unique to you. It contains only 10 numbers, which are based on parts of your DNA sequence, so there is a probability of a match entirely by chance. It is quite a low probabilityas Mr. Pugh explained, it is about one in 1 billionbut it increases if the crime scene DNA is partial, which is very often the case. It is often a degraded sample and not a full profile. You get more false matches the more comparisons you do, so there is genuine concern among forensic scientists that once you share matches across Europe, which will happen from 2011, more false matches will occur by chance.

Q 128

Shona McIsaac: We are moving to 15 points of comparison, which means that there will be fewer false matches.

Dr. Helen Wallace: If you compare across Europe, the concern is that the German crime scene-stored samples have fewer points of comparison. If you are going to compare with those samples, you will get false matches.

Q 129

Shona McIsaac: I am talking about this country.

Dr. Helen Wallace: But if someone is on the database in this country, their profile will be compared across Europe within two years time, so they will be at risk of a false match.

Q 130

Shona McIsaac: So you are not reassured that the police are moving to increase the points of comparison from 10 to 15?

Dr. Helen Wallace: It does not

Q 131

Shona McIsaac: The chances of a false match are already one in 1 billion.

Dr. Helen Wallace: But it does not address the real causes of problems. I am not saying that it is a bad thing to move to more points of comparison, but a lot of problems occur when the crime scene sample does not even have the existing 10 points because it is too degraded. Those crime scene samples are still used for matches, which might lead someone to be implicated in a crime. It is not foolproof.
I am not saying that there is a big risk; I am just saying that it is not foolproof. DNA evidence can also be planted at crime scenes so as to provide a perfect match when the person was not there.

Q 132

Shona McIsaac: Nobody is actually convicted purely on a genetic match.

Dr. Helen Wallace: The Crown Prosecution Service guidelines say that yes, there should be additional evidence in order to secure a conviction, but that does not necessarily mean that the person will not have a difficult time being investigated due to a match or that they will necessarily avoid any miscarriage of justice.

Q 133

Shona McIsaac: Obviously, I appreciate concerns about the DNA of people who have not been convicted being kept on the database, but can I put this scenario to you? Suppose that somebody has been arrested for rape, the DNA is there and it goes to court, but the person is not found guilty. What is your view in that particular situation? Some people argue that those people are therefore innocent, so the DNA should not be retained.

Dr. Helen Wallace: We have supported the compromise, if you like, that is in place in Scotland. It is something similar along those lines that allows the police to say, We want to keep profiles in certain cases that have been proceeded against for serious violent or sexual crimes for a time-limited period. The reason that policy was adopted was specifically because of the poor conviction rate in the context of those kinds of crime. It is not perfect, but it is a compromise that might allow you to detect some of those serious crimes without requiring you to keep en masse the DNA profiles even of children of the age of 10 who have been accused of scratching their names on a park bench.

Q 134

Shona McIsaac: What about a child of 14 accused of rape who is found not guilty?

Dr. Helen Wallace: In Scotland, they would keep that childs profile.

Q 135

Tom Brake: I want to pursue a little the question of false matches. I am not sure whether you were here earlier and heard our discussions about the cost-effectiveness or otherwise of DNA. If I understand you correctly, if more people go on the DNA database, especially following its extension as a result of European co-operation whereby DNA matches will be pan-European, it would inevitably lead to a greater number of false matches. That could lead to the police pursuing many red herrings. I presume that you are advocating a proper assessment of whether an extension of the DNA database would be helpful for the police?

Dr. Helen Wallace: That is right, yes. That is a potential downside. It is not the only one, in terms of peoples concern about being on the database, but certainly it is one.

Q 136

Tom Brake: Purely in terms of police effectiveness, is that an area that you think requires further investigation?

Dr. Helen Wallace: Yes.

Q 137

Tom Brake: Secondly, you referred to the failure to delete from the police national computer database. Again, does that refer to the earlier discussion about retention and deletion, and whether a flag is maintained on the PNC to confirm that at some point someones DNA had been collected but has since been deleted? If someone carries out a Criminal Records Bureau check, would it show up that they had been on the DNA database at some point? If so, potential employers could use that information for their own purposes.

Dr. Helen Wallace: That is correct. Basically, what happened was that the administrative decision was taken to keep all the police national computer records, in order to be able to see whether or not a person had had their DNA taken, and also to trace them if there was a match. That was a decision that followed the changes in legislation. If youre removed now, under the exceptional cases procedure, Mr. Green being an example, he would have had his police national computer record deleted, as well as his DNA profile and his fingerprints.
Under the proposals in the Bill, there is no automatic process to delete the police national computer record. We think that is not going to help restore public trust, because individuals on the database will still have those records kept, and they can be used to refuse a visa or a job; that information can be released. Further, it means that the police will also be able to see, if they arrest you again, that you were on the database before and might act differently towards you; they might simply re-arrest you and put you back on the database. It leaves a loophole where you could be indefinitely on the database simply as a result of being re-arrested.

Q 138

Tom Brake: Have GeneWatch or Liberty taken the matter up with the Government, asking whether they are aware of its impact, perhaps on people seeking employment? If so, what was the Governments response?

Dr. Helen Wallace: We have continually raised the issue of the police computer records being kept as well as the DNA, but we have not specifically raised the matter with the Government in relation to the Bill, basically because it has taken us some time to go through it and see all the implications.

Isabella Sankey: We havent specifically taken up the issue of the PNC record at present, mainly because we are focused, as I said at the beginning, on the retention of profiles for six years. I understand, however, that the Home Office might be in the course of looking at the PNC more generally, in terms of its retention and disclosure regimes. We would certainly hope that this would form part of that consultation.

Tom Brake: This, Sir Nicholas, may be an opportunity for the Minister to intervene on the point of clarification, and to make clear the Governments position.

Q 139

David Hanson: My understanding, which I am pleased to have clarified, is that at the moment there is no PNC access for the database. No one would know that the DNA database was retained on the PNC. Similarly, no CRB check would reflect that because the two are entirely separate. There is no connection between the two at all. No officer would know that someone was on the DNA database when they accessed the PNC; access to the PNC is strictly restricted and nobody else would know, and it is not recorded on the PNC.

Dr. Helen Wallace: Whether you have your profile taken is indeed recorded on the PNC. The reason is to stop officers retaking a profile from someone they have arrested, which costs unnecessary public money. It is recorded in the record. I can send the Committee a list.

David Hanson: I suggest, Sir Nicholas, that as our understanding on these points is very different, we will clarify that point in the evidence session on Thursday.

Nicholas Winterton: There appears to be some dispute, so it is helpful of the Minister to say that the matter will be clarified on Thursday.

Q 140

Andrew Rosindell: Do either of the two ladies consider that it is justified in any circumstance to keep an innocent persons DNA on the database?

Isabella Sankey: At Liberty we think that in exceptional circumstances it would be justified to keep an innocent persons DNA on the database. We have never taken an absolutist approach to the retention of DNA. We understand and endorse its uses in detecting and preventing crime, as well as in clearing innocent people. For us, any retention regime has to be informed by principles and most importantly by human rights principlesboth those of potential victims and those who might be subjected to crimes, but also of those who might have their DNA retained.
Our position on DNA retention would be one very similar to the Scottish system, whereby it applies to those individuals who have been charged or taken to court where proceedings have been commenced and then stopped for whatever reasonwhether that was because there was not enough evidence or somebody was acquitted in court. It would be those individuals charged with serious, violent or sexual offences who would have their DNA retained for a limited period.
We would not endorse an application procedure as you have in Scotland, mainly because the Scottish system is different and they have different verdicts in Scotland, one of which is the verdict of not proven. We do not have that verdict in England and Wales, and we think that having an application process where you are asking a court to determine whether an individuals DNA should be retained, although they have not been found guilty, would be tantamount to creating a new form of verdict in the English common law system. Our position would be the Scottish systemthree years retention for those individuals charged with sexual or violent offences.

Q 141

Andrew Rosindell: How about those who are charged but the case against them is then dropped? Would you keep them in the same category?

Isabella Sankey: Yes, exactly. So whether proceedings were stopped before they reached the courtroom or because they were acquitted in the courtroom, this would apply to all those individuals against whom criminal proceedings are begun. That is the reason that Dr. Wallace highlighted earlier: we recognise that low conviction rates, particularly for sexual offences

Q 142

Andrew Rosindell: Would you apply that only to serious offences, or to any offence?

Isabella Sankey: Serious offences, as with the Scottish system. So serious offences of a sexual or violent naturethose offences where DNA evidence is most relevant and where it would be appropriate to retain it for a limited period.

Q 143

Andrew Rosindell: So you feel that the Bill goes too far?

Isabella Sankey: We believe that the Bill does not go far enough in terms of deleting innocent peoples DNA.

Q 144

Andrew Rosindell: But too far in retaining the DNA?

Isabella Sankey: Exactlytoo far in retaining DNA. We do not think that any kind of principled engagement has taken place; more that it is an attempt to do as little as necessary to comply with the S and Marper judgment in which we intervened. Incidentally, when the Council of Ministers met last September and considered the Home Office consultation proposals of a 12-year and a six-year retention period, it was noted that the six-year retention period would not be proportionate and would not comply with the Marper judgment. So it is our view that the six-year period would be unlawful as well as unprincipled.

Q 145

Andrew Rosindell: But what do you say to the counter-argument that there are those who have been convicted because of those additional years?

Isabella Sankey: We have yet to see any statistics on the percentage of crimes that have been cleared up purely as a result of an innocent person remaining on the database. The test for those statistics would be that somebody was arrested, was never charged with or convicted of an offence, had their DNA retained on the national database and was later convicted purely as a result of retentionthat there was no other possible evidence that would have led the police to arrest that person and take their DNA. Remember that DNA can always be taken on arrest. That would be the test for exactly how statistically useful retaining innocents DNA is.

Q 146

David Hanson: Would this example pass your test? Matthew Fagan, who was sacked from a London company in 2006, did not receive any conviction. His DNA was taken when he appeared before the police and ultimately he was charged with and convicted of the murder in January 2007 of Cathy Marlow when his DNA was retrieved from under her fingernails. That material matched his DNA. Does that pass your test?

Isabella Sankey: That is a horrific case, but just arguing that more DNA retention will lead to the pick-up of more crimes is an argument for a universal DNA database. It is not an argument for retaining innocent peoples DNA.

Q 147

David Hanson: This is the nub of the argument, which is why we need to test it from your perspective as well as from that of colleagues here. We are trying to agree with the verdict of S and Marper, to be proportional about this and to look at the evidence base that we have, but in that particular case, if I accepted the evidence that you have put to us today, Mr. Matthew Fagan would not now be in prison in the United Kingdom. He would not be convicted of the murder of Cathy Marlow. The match of the DNA after a non-conviction, after the three-year period in the Scottish system, has ensured that that individual is now serving that sentence. Should we ignore that?

Isabella Sankey: It is entirely logical that additional DNA retention will lead to the solving of additional crimes. It is impossible to object to that argument, but as I said, it is an argument for a universal DNA database, not a proportionate one.

Nicholas Winterton: Can Dr. Helen Wallace give her view on this?

Dr. Helen Wallace: I have some specific points about this case. The murderer was known to the victim, so it is correct that it is a case where the match was the first lead to that perpetrator, but I do not think I will accept it as a case where the perpetrator would have walked free had they not been on the database. They were a disgruntled former employee who had been sacked from that workplace. They had gone back to burgle the workplace and the victim disturbed them. It was a very horrible case, but it is quite implausible that the police would not have started looking for disgruntled former employees who knew the victim, and later made that match. It is a case that might have been delayed. We do have to take that into account. That is serious, but it is not a case where you can say that the perpetrator was very likely to have walked away.

Nicholas Winterton: I think our witnesses have responded as they wish to respond.

Q 148

Tony Baldry: We are all here because of Strasbourg. I imagine that this whole Bill is because of Strasbourg: because the Home Office had to respond to the Strasbourg judgment and then cast around within the Department for other pieces that people would like to put in the Bill, from domestic violence to wheel-clampingthere must have been a great miscellany of assistant secretaries assembled. Did I understand you to say that it is your view that if the Bill was passed in its present form, it would still be at risk of being struck down in Strasbourg?

Dr. Helen Wallace: Yes.

Isabella Sankey: Yes.

Q 149

Tony Baldry: What is the basis for your making that suggestion? As a lawyer, I am always very keen at the prospect of any litigation, particularly in Strasbourg, because it is always very well paid. What is your basis for that suggestion?

Isabella Sankey: First, the fact that nothing in the Bill distinguishes between those innocent people who will be retained. Rather than taking a proportionate approachlooking at the crime for which they have been arrested, the relevance of DNA in solving that crime and other factors like thatall the Bill does is set a blanket, automatic period of six years. When the Council of Ministers considered the six-year period, they said that it would not comply with the judgment or be proportionate. There is a report about the meeting they had which confirms that view.
There has been a lack of willingness to look at the principles laid down in Marper about what a proportionate DNA retention period is. That is the nub of why the current proposals would, we believe, be unlawful.

Q 150

Tony Baldry: That point did not come up on Second Reading. It would be helpful if you shared that extract with the Committeethat excerpt from the Council of Ministers meetingbecause I have not seen it in any of the other papers we have seen. What is it about the Scottish system? Why is three years proportionate in your view, but not six?

Isabella Sankey: The difference, of course, is that it is not an automatic three-year retention period for all innocent people. Unless you accept the presumption of innocence and allow for the fact that in any case, the presumption is going to be that somebody comes off the database unless the circumstances are exceptionalfor example, if they have been charged with a serious violent or sexual offenceyour proposals will always be disproportionate, because they will apply a blanket suspicion and retention on a criminal database to innocents per se, regardless of the suspected crime for which they have been arrested and the relevance of DNA to that crime.

Nicholas Winterton: Would Dr. Helen Wallace like to add anything to what Isabella Sankey has said?

Dr. Helen Wallace: Only, perhaps, some information regarding the origin of the Scottish model, which did not come completely out of the blue. I was involved in giving evidence to the Justice Committee up there at the time.
The origin of the idea was from the retention guidelines that the Association of Chief Police Officers had in 2000 for criminal records, which were also supposed to apply to DNA profiles at that time. Peoples records were supposed to be deleted after 42 days if they were innocent, but there was an exception:
Details may be retained for a period of five years of offences where a sexual offence is alleged, but the subject is acquitted, or the case is discontinued because of lack of corroboration or allegation of consent by the victim.
It was looking at that specific category of offences where ACPO had argued at the time that there might be people who were not being convicted but for whom proceedings should nevertheless be treated as some kind of warning sign.
So it is not true to say that it is a completely evidence-free policy; it comes from looking at types of offences where DNA might play a role and where there might be people who are risky in some sense.

Q 151

Tony Baldry: Thank you very much. To go back to what I was about to ask, is the issue partly that how the system works at present is that it is inferred that if your DNA is taken, you are by definition a suspect, there is an implication that you have a propensity to offend and some sort of stigma is attached? Would you object less if, a bit like line-ups, ID parades and so forth, there was more random taking of DNA among bystanders and members of the general public who did not necessarily come within that category? In other words, that you tried to reduce or remove any scintilla of a suggestion of stigma by saying, This is a random sample. Those people might be included, but by and large, it would be a much more random sample.

Isabella Sankey: The stigma that you have identified is certainly a huge part of the objections to the current DNA database and as it would stand according to the Bill, but that is only one part. Random sampling of individuals who had done absolutely nothing wrong would be similarly disproportionate and an unlawful invasion of their right to a private life, remembering, of course, how intimate DNA is. Interestingly though, if you are taking a purely statistical approach to DNA retention, which seems to be the road that the Government are going down at the moment, barring the idea that they have incorporated proportionality with the six-year cut-off period, you would retain the DNA of all young men between the ages of 16 and 24, who are more likely to be convicted than those of other ages and those of the other gender. Statistically, if that was all that was informing your DNA retention regime, it would probably be more effective than retaining the DNA of people arrested but not convicted, which is why we say that statistics can form only part of the assessment, and that principles should form another, bigger, part.
The stigma that you identified is one principle that needs to be looked at, as does the discrimination issue. There are many more young black men on the DNA database than any other group.

Q 152

Tony Baldry: Can I bring you back to a point that was raised by a Labour colleague? I do not quite understand why certain parts of identity are, in your grounds, more sensitive than others. We are moving to a system whereby if we do not have a compulsory ID card system, increasingly we shall need to show our passports to prove identity. Our passports will be microchipped and the microchip will contain increasingly personal data about usdata entirely related to me. Why should I be more concerned about a nine-digit or 15-digit number that describes my DNA than about a microchip on a passport or an extended national insurance number?

Isabella Sankey: It is all context and purpose-specific. In the example that you give of a passport, you choose to use that passport to enter and leave the country. You decide to do that by consent and you use the passport to enable you to do so. In my view, that is a different circumstance from the state telling you that it will automatically retain your DNA against your consent for a six-year period because you have been arrested for a suspected offence, but nothing further has happened to you.
With any piece of personal information, a human rights approach to assessing how it should be used and how it can be used would say that you need to look at how sensitive it is. For example, a DNA sample is probably a lot more sensitive than any other piece of personal information. It can tell you about your familial background, your life expectancy and the chance of diseases in later life. It is the most intimate, sensitive piece of information that you have. That is why it is imperative that it is destroyed as soon as possible.
A photograph is less sensitive and other identifiers are less sensitive again. You need to look at how sensitive the information is, the purposes for which it is being used, and whether consent has been given. That is how you make a human rights judgment about whether it is appropriate for the state to hold the data.

Nicholas Winterton: Could Dr. Wallace also respond? There are two different organisations.

Dr. Helen Wallace: To add to that, there is a particular point about the Big Brother state and the role that DNA can play in tracking individualsDNA as a form of bio-surveillance. If you were living in a police stateif we were having an illegal political meeting in this roomthe state could come in and test the DNA from your glass, check whether you are on the database and track you and your relatives. Similarly, if the state fails to keep that information safe and a criminal gang manages to infiltrate the systemthere has been some concern in Italy about whether the mafia could do thatit could track down potential victims or people under witness protection schemes, rather than the bad guys. If the bad guys are on the database and the good guys are looking after it, it is great. But there is real concern about the good guys being on the database with the bad guys looking after it or getting access to it.

Q 153

Tony Baldry: So how about if everyone is on the database? We require national insurance numbers and, increasingly, we require passports for ID purposes. So what if everyone is on the database? What is the problem then?

Dr. Helen Wallace: Uzbekistan has recently proposed putting everyone on the database. It gives the state incredible power to track individuals or their relatives, including, potentially, political opponents, if the state is not friendly.

Isabella Sankey: A universal DNA database would get rid of the issue of discrimination. That would be one advantage of a universal DNA database, but, again, it would be wholly disproportionate, most definitely unlawful and would infringe the right to private life on a scale we have never seen in this country.

Q 154

Tony Baldry: Presumably, other EU member states, and other states subject to Strasbourg, also have DNA databases, so what is the longest period of time that any other EU member state retains DNA data for?

Isabella Sankey: My understanding is that no other European country holds the DNA of innocent people indefinitely, as we currently do, and that most have adopted a system similar to the Scottish system, so for certain violent or sexual offences it can be retained for a limited period. I do not believe that any other European country retains all innocents DNA for a fixed period, regardless of offence, but I can certainly clarify that point for the Committee.

Q 155

Tony Baldry: On the Scottish system, you say you believe that DNA should be held if people are charged but the case does not necessarily proceed.

Isabella Sankey: For serious offences only, not minor offences.

Tony Baldry: I understand that. I started practising law before the Police and Criminal Evidence Act 1984, so there are bits of me that are fairly cynical. You heard what Sir Hugh had to say, and clearly one of the issues one has with the administration of justice is that often police officers become totally convinced from their own perspective that although an individual is guilty of an offence, they simply do not have sufficient evidence for a conviction. That is why before PACE so many immaculate confessions purportedly took place in the police car between the point of arrest and arriving at the police station. With regard to the Scottish system, do you not see a risk of police in those circumstances simply charging individuals, even if they do not have sufficient evidence, so as to get their DNA and then simply drop the charges afterwards?

Isabella Sankey: I do not think that you can eliminate risk from the dispensation of criminal justice, which is another very good reason why we would not support the system in Scotland, where there can be indefinite applications for DNA to be retained. In those circumstances, if someone had been charged unlawfully purely so that their DNA could be kept on the database, it could be kept for a period of only three years. That is certainly not ideal if the individual was charged purely in the way you described, but it would be for only three years and no longer.

Nicholas Winterton: Dr. Helen Wallace, do you wish to respond to Mr. Baldry?

Dr. Helen Wallace: I have no more comments on that point.

Nicholas Winterton: Does any other member of the Committee wish to put a question?

Q 156

Tom Brake: Are there any questions the witnesses think we should have asked that we did not? Perhaps they could answer the question we have not asked. Is there any critical point that we have failed to pick up on in relation to DNA retention, deletion or any other aspect that we should raise with the Minister?

Nicholas Winterton: To give the witnesses a moment or two to think, I have to say that Tom Brake has stolen my thunder, because I normally finish by asking witnesses whether there is anything else they would like to add to the evidence they have given that has not been brought out in the questions put to them.

Tony Baldry: It might be a point of order, Sir Nicholas, but it strikes me that the suggestion that the Governments proposals could be at risk of being struck down is pretty serious, because if so we might all sit here and go through a pointless exercise. I wonder whether we can put the Minister on notice so that on Thursday he can respond to that point and set out advice the Home Office has received that it will not be struck down. Otherwise, things will be rather boring.

David Hanson: While our two witnesses are pondering the helpful question put by Mr. Brake, pending your question, Sir Nicholas, I am happy to confirm to Mr. Baldry that I will certainly address that issue on Thursday, because we have obviously considered the judgment and how far we can push the boundary of the judgment in relation to our wish to have protection for the public. I will address the issue on Thursday and, if need be, supply a note to the Committee.

Tom Brake: Will the Minister also respond on Thursday to the serious issue raised by Dr. Wallace, about the potential for an increasing number of false matches, with the potential for significant waste of police time pursuing suspects who are not suspects but have shown up as a false match?

Nicholas Winterton: It would be helpful if Isabella Sankey, as she suggested, could offer the data and information on how our DNA rules compare with those of other countries within the European Union. I ask that as Chairman, totally impartially, to help the Committee when we come to debate the Bill. Another Minister wishes to participate.

Q 157

Alan Campbell: This is a genuine point of clarification. I am not sure whether I heard Isabella Sankey correctly. When you talked about the Scottish model, you said that you would do away with the possible extension after three years. Is that correct?

Isabella Sankey: Absolutely, yes.

Q 158

Alan Campbell: And that clearly includes people who have been arrested but not convicted of serious offences?

Isabella Sankey: Yes, we consider that the three-year retention period is an exemption to the principle that innocents do not stay on the database, remembering of course that the police can always rearrest somebody at any point and take their DNA again, regardless of whether their DNA has previously been on the database. That is the real safeguard.

Q 159

Alan Campbell: That presumes the police have grounds for arrest, of course. Regarding that three-year period, are you making that judgment from an evidential base?

Isabella Sankey: That judgment is based on the Scottish system, which was, of course, cited with approval in Marper, but also on the well-known fact that there are particularly low conviction rates for sexual and violent offences. It is a principled and practical exception to the rule that you should not retain innocent people on a criminal database.
Could I quickly add one answer to the question whether there was anything we have not been asked about? We are particularly concerned about the national security exception, as that would allow indefinite retention, via the back door, based on something that would be very difficult to challenge by judicial review. Of course, DNA retention is very difficult to challenge anyway by judicial review, but particularly when national security is cited as a reason for retention.
On a point of clarification, I understand that there has been a little confusion about offences for which that exception can be used to retain. It could be used if someone is arrested for any offence. It is not linked in any way to arrest for a terror offence or for a particularly violent one. Somebody could be arrested for the most trivial offence and have their DNA indefinitely retained, because of the national security exceptionbecause the police cite national security. At the very least, we urge parliamentarians to tighten that up, if not get rid of it altogether.

Dr. Helen Wallace: I have two points: not questions you should have asked me but on questions you asked previous witnesses. One related to figures about people on the database, matches with innocent people and so on. I have prepared a submission that includes all those figures for the Home Affairs Committee, which I would be happy to send also to this Committee.
The second point is that the witnesses were rather reluctant to answer the question about their Scottish colleagues opinion of the system in Scotland. My understanding is that the police in Scotland responded to the Fraser review, for example, and the police liaison officer for the Scottish DNA database in fact consistently argued for the Scottish model and not for the model now being proposed in England and Wales.

Nicholas Winterton: I think we have run out of questions. I thank our two witnesses for the extremely positive, frank and full way in which they have dealt with all the questions that have been put to them. I thank them on behalf of the Committee for coming to give evidence.

Ordered, That further consideration be now adjourned. (Mr. Watts.)

Adjourned till Thursday 28 January at Nine oclock.